Why the Hague Convention Could Matter in Your Child Custody Case

International child custody cases are on the rise due to the mobility of couples who either desire to live abroad, move back to their home country or who receive international job assignments. Let’s take a look into the implications of International Child Custody cases and how The Hague Convention can help. 

While legal issues with Child Custody (now known as Allocation of Parental Responsibilities) are common, many do not know what to do when their child/children are taken overseas. It’s important for the residents of the Greater Chicagoland area who share custody of their children know about the ins and outs of Hague Convention should this occur. Rest assured, these issues can be handled with caution and care by the Family Law Attorneys at Masters Law Group. Our seasoned attorneys have extensive knowledge and experience in handling international child custody cases under the Hague Convention.

The biggest issue in determining custody issues is where the children reside, as that is typically where the custody battle will take place. Here’s an extensive look on why it’s important to be familiar with the Hague Convention and what it could mean for your international child custody case.

Why the Hague Convention is Important

Firstly, what is The Hague Convention? The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country.

A number of countries around the globe have joined a treaty called the Hague Convention. This multilateral treaty was developed by the Hague Conference on Private International Law (HCCH) and concluded on October 25, 1980, entering into force on December 1, 1983.

According to the Convention, the removal or retention of a child is “wrongful” whenever it breaches custody rights attributed to a person or any other body. If, at the time of removal or retention, those rights were exercised. Even if a parent already has legal custody of a child, the Convention is needed. U.S. court orders may not be recognized in other countries, and sovereign nations cannot interfere with each other’s legal systems, judiciaries, or law enforcement.

Convention Framework

The Convention’s framework allows countries to help one another find solutions for difficult custody cases where a child is abducted. This doesn’t rely on the immigration status or nationality of the child. In certain situations, a child may be wrongfully detained in another country, where they are not a resident. Violations of custodial rights happen when the child is wrongfully removed from their habitual home and now lives in a foreign country. 

The Central Authority must do the following:

• Be the point of contact for parents and children in international child custody cases.
• Help locate abducted children.
• Encourage solutions that work for both parents.
• Submit documents as part of the application are admissible in courts in partner countries.

Presenting a custody order is not needed to prove that a parents custodial rights were violated when the child was taken from their country; this can be proven by showing proof of parenthood or marriage. When a child is returned to his/her habitual residence, it does not depend on the immigration status/or nationality of a child or his or her parents. 

The Court May Deny Return

Under certain circumstances, the court may deny the return of the child. It’s important to note that these exceptions can vary from country to country. 

Here are some reasons where the court may deny return:

• There is risk to the child where they are exposed to physical or psychological harm.
• The child objects if they are old enough and mature enough.
• More than a year has passed, and the child acclimates to their new home.
• The custodial parent agrees to let the child remain.
• The return would violate human rights and fundamental freedoms
• The custodial parents seeking return are not exercising rights of custody during wrongful removal. 

The Hague Convention establishes numerous procedures for contacting each country and coordination in an international child abduction. According to the treaty, a suit for the return of the child is given priority, and courts typically make decisions within six weeks.

Get the Help You Need

High-stakes international child disputes are not going away. If you are facing such a case, you need to act fast. An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice. This is why it’s extremely important to locate counsel with knowledge and experience in Hague proceedings. 

Erin Masters and Anthony Joseph have extensive experience in cases involving international child custody disputes in both courts located in the State of Illinois and the United States federal court system. We have extensive knowledge and experience with The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”) that was enacted into law through the International Child Abduction Remedies Act (“ICARA”) which provides that a parent whose child has been wrongfully removed from or retained in the United States may petition for the child’s return to his or her country of habitual residence.

Our Featured Hague Decisions:

• Sulcaite, Memorandum Opinion and Order
• Ho, Memorandum Opinion and Order
• Hinnendael, Decision and Order

Contact us today to schedule a consultation.